10/4/13 Drafting Legal Documents, Principles of Clear Writing

Drafting Legal Documents

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Principles of Clear Writing

1. Write in the active voice. The active voice eliminates confusion by forcing you to name the actor in a
sentence. This construction makes clear to the reader who is to perform the duty.

The passive voice makes sentences longer and roundabout. Who is responsible is much less obvious.
Passive verbs have a form of the verb to be plus the past participle of a main verb.

am is are was were be been

plus

a main verb usually ending in "en" or "ed".

Examples of passive verbs:

was received,
is being considered,
has been selected.

The passive voice reverses the natural, active order of English sentences. In the following passive
example the receiver of the action comes before the actor.

Passive: The regulation [receiver] was written [verb] by the drafter [actor].

Active: The drafter [actor] wrote [verb] the regulation [receiver].

Passive constructions are confusing when used in regulations. Active sentences must have actors, but
passive ones are complete without them.

The material will be delivered. By whom?

The start date is to be decided. By whom?

The figures must be approved. By whom?

Putting the actor before the verb forces you to be clear about responsibility.

The messenger will deliver the material.

The contractor will decide the start date.
The administrator must approve the figures.

The passive voice is appropriate when the actor is unknown, unimportant, or obvious. This
does not usually apply in regulatory text.

Small items are often stolen.

The applications have been mailed.

2. Use action verbs.

Avoid words like this:

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DON'T SAY SAY

give consideration to consider

is applicable to applies to

make payment pay

give recognition to recognize

is concerned with concerns

They are called "nominals" -- nouns with verbs inside. They are hard to read and make sentences longer.
Action verbs are shorter and more direct.

3. Use "must" instead of "shall".

imposes an obligation to act, but may be confused with prediction of future

shall
action

will predicts future action

must imposes obligation, indicates a necessity to act

must
indicates a prohibition
not

should infers obligation, but not absolute necessity

may indicates discretion to act

To impose a legal obligation, use "must."

To predict future action, use "will."

DON'T SAY: The Governor shall approve it.

SAY: The Governor must approve it. [obligation]

OR: The Governor will approve it. [future action]

4. Be direct. Talk directly to your readers. Use the imperative mood. Regulations lend themselves to this
style, especially procedures, how-to instructions, and lists of duties.

Directness avoids the passive voice:

SAY: Sign all copies.

SAY: Attach a copy of your W-2 to your return.

This style results in procedures that are shorter, crisper, and easier to understand.

5. Use the present tense. A regulation of continuing effect speaks as of the time you apply it, not as of
the time you draft it or when it becomes effective. For this reason, you should draft regulations in the
present tense. By drafting in the present tense, you avoid complicated and awkward verb forms.

DON'T SAY: The fine for driving without a license shall be $10.00.

SAY: The fine for driving without a license is $10.00.

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6. Write positively. If you can accurately express an idea either positively or negatively, express it
positively.

DON'T SAY: The Governor may not appoint persons other than those qualified by the Personnel
Management Agency.

SAY: The Governor must appoint a person qualified by the Personnel Management Agency.

A negative statement can be clear. Use it if you're cautioning the reader.

DON'T WALK
DON'T SMOKE
But avoid several negatives in one sentence.

DON'T SAY: A demonstration project will not be approved unless all application requirements are met.

SAY: A demonstration project will be approved only if the applicant meets all requirements.

It's better to express even a negative in positive form.

DON'T SAY SAY

not honest dishonest

did not remember forgot

did not pay any attention to ignored

did not remain at the meeting left the meeting

did not comply with

or violated
failed to comply with

7. Avoid use of exceptions. If possible, state a rule or category directly rather than describing that rule
or category by stating its exceptions.

DON'T SAY: All persons except those 18 years or older must...

SAY: Each person under 18 years of age must...

However, you may use an exception if it avoids a long and cumbersome list or elaborate description.
When you use an exception, state the rule or category first then state its exception.

DON'T SAY: Alabama, Alaska,... and Wyoming (a list of 47 states) must ration...

SAY: Each state except Texas, New Mexico, and Arizona must ration... (Note that the category "each
State" is established first and then the exceptions are stated.)

8. Avoid split infinitives. The split infinitive offends many readers, so avoid it if you can.

DON'T SAY: Be sure to promptly reply to the invitation.

SAY: Be sure to reply promptly to the invitation. or SAY: Be sure to reply to the invitation promptly.

9. Use the singular noun rather than the plural noun. To the extent your meaning allows, use a
singular noun instead of a plural noun. You will avoid the problem of whether the rule applies separately to
each member of a class or jointly to the class as a whole.
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DON'T SAY: The guard will issue security badges to the employees who work in Building D and Building
E.

SAY: The guard will issue a security badge to each employee who works in Building D and each
employee who works in Building E.

unless you mean

The guard will issue a security badge to each employee who works in both Building D and Building E.
(There are other possible meanings.)

10. Be consistent. Don't use different words to denote the same things. Variation for the sake of
variation has no place in regulation writing. Using a synonym rather than repeating the precise term you
intend just confuses the reader.

DON'T SAY: Each motor vehicle owner must register his or her car with the Automobile Division of the
Metropolitan Police Department.

SAY: Each automobile owner must register his or her automobile with the Automobile Division of the
Metropolitan Police Department.

Don't use the same word to denote different things.

DON'T SAY: The tank had a 200-gallon tank for fuel.

SAY: The tank had a 200-gallon fuel container.

11. Use parallel structure. Arrange sentences so that parallel ideas look parallel. This is important when
you use a list.

Nonparallel construction:

The duties of the Executive Secretary of the Administrative Committee are:

To take minutes of all the meetings; (phrase)

The Executive Secretary answers all the correspondence; and (clause)
Writing of monthly reports. (topic)

Parallel construction:

To take minutes of all the meetings;

To answer all the correspondence; and
To write the monthly reports.

12. Prefer simple words. Government writing should be dignified, but doesn't have to be pompous.
Writing can be dignified when the language is simple, direct, and strong. To make your writing clearer and
easier to read -- and thus more effective -- prefer the simple word.

DON'T SAY SAY

construct, fabricate make

initiate, commence begin

terminate end

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utilize use

substantial portion large part

afforded an opportunity allow

13. Omit needless words. Don't use compound prepositions and other wordy expressions when the
same meaning can be conveyed with one or two words.

DON'T SAY SAY

because of the fact that since (because)

call your attention to the fact that remind you

for the period of for

in many cases often

in many instances sometimes

in the nature of like

the fact that he had not succeeded his failure

the question as to whether whether

14. Avoid redundancies. Don't use word pairs, if the words have the same effect or where the meaning
of one included the other.

Examples: Word pairs to avoid

any and all

authorize and direct

cease and desist

each and every

full and complete

order and direct

means and includes

necessary and desirable

15. Use concrete words. Government writing often concerns abstract subjects. But abstract words can
be vague and open to different interpretations. Put instructions in simple, concrete words.

DON'T SAY IF YOU MEAN

vehicles automobiles

firearms rifles

aircraft helicopters

16. Don't use words that antagonize. Words can attract or repel readers. It is possible to choose
words in our writing that do not make the wrong impression or antagonize our readers. Use words to
which people react favorably rather than words that they resent.

USE WORDS LIKE

ability achieve benefit guarantee

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please reasonable reliable service

useful you

RATHER THAN THESE WORDS

alibi allege blame complaint

impossible liable oversight unfortunate

waste wrong

17. Avoid noun sandwiches. Administrative writing uses too many noun clusters -- groups of nouns
"sandwiched" together. Avoid these confusing constructions by using more prepositions.

DON'T SAY: Underground mine worker safety protection procedures development.

SAY: Development of underground procedures for the protection of the safety of mine workers.

OR MORE LIKELY: Development of procedures for the protection of the safety of workers in
underground mines.

Which meaning is intended becomes clearer when this four-word sandwich is broken up.

18. Don't use gender-specific terminology. Avoid the gender-specific job title:

DON'T SAY SAY

Crewman Crew member

Draftsman Drafter

Enlisted men Enlisted personnel

Fireman Firefighter

Foreman Supervisor

Manhours Hours worked

Manpower Personnel, workforce

Avoid the gender-specific pronoun when the antecedent could be male or female.

DON'T SAY: The administrator or his designee must complete the evaluation form.

SAY: The administrator or the administrator's designee must complete the evaluation form.

Be careful when you rewrite to avoid the problem. The following examples don't necessarily have the
same meaning --

Each Regional Director will announce his or her recommendations at the conference.
The Regional Directors will announce their recommendation at the conference.

19. Write short sentences. Readable sentences are simple, active, affirmative, and declarative.

The more a sentence deviates from this structure, the harder the sentence is to understand.

Long, run-on sentences are a basic weakness in legal documents.

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Legal documents often contain conditions which result in complex sentences with many clauses.

The more complex the sentence, the greater the possibility for difficulty in determining the intended
meaning of the sentence.

Solutions

State one thing and only one thing in each sentence.

Divide long sentences into two or three short sentences.

Remove all unnecessary words. Strive for a simple sentence with a subject and verb. Eliminate
unnecessary modifiers.

If only one or two simple conditions must be met before a rule applies, state the conditions first and
then state the rule.

If two or more complex conditions must be met before a rule applies, state the rule first and then
state the conditions.

If several conditions or subordinate provisions must be met before a rule applies, use a list.

20. Make lists clear and logical in structure. Listing provides white space that separates the various
conditions. Listing can help you avoid the problems of ambiguity caused by the words "and" and "or".
When you list, use the following rules:

Use parallel structure. (See example in item 11 above.)

List each item so that it makes a complete thought when read with the introductory text.

If the introductory language for the list is a complete sentence --

End the introduction with a colon; and
Make each item in the list a separate sentence.

If the introductory language for the list is an incomplete sentence --

End the introduction with a dash;
End each item in the list except the last item with a semicolon;
After the semicolon in the next-to-last item in the list, write "and" or "or" as appropriate; and
End the last item in the list with a period.

21. Use short paragraphs. A writer may improve the clarity of a regulation by using short, compact
paragraphs. Each paragraph should deal with a single, unified topic. Lengthy, complex, or technical
discussions should be presented in a series of related paragraphs.

22. Use a checklist and review your draft for each of these principles separately.

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